0001| SENATE BILL 402
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0002| 43rd legislature - STATE OF NEW MEXICO - first session, 1997
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0003| INTRODUCED BY
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0004| DEDE FELDMAN
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0005|
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0006|
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0007|
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0008|
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0009|
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0010| AN ACT
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0011| RELATING TO CRIMES; DEFINING "GOOD CAUSE" AS AN AFFIRMATIVE
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0012| DEFENSE FOR PURPOSE OF CUSTODIAL INTERFERENCE CRIMES.
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0013|
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0014| BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF NEW MEXICO:
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0015| Section 1. Section 30-4-4 NMSA 1978 (being Laws 1989,
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0016| Chapter 206, Section 1, as amended) is amended to read:
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0017| "30-4-4. CUSTODIAL INTERFERENCE--PENALTIES.--
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0018| A. As used in this section:
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0019| (1) "child" means an individual who has not
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0020| reached his eighteenth birthday;
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0021| (2) "custody determination" means a judgment
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0022| or order of a court of competent jurisdiction providing for the
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0023| custody of a child, including visitation rights;
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0024| (3) "good cause" means that the person
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0025| taking, detaining, concealing, enticing away or failing to
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0001| return a child:
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0002| (a) reasonably believed the action
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0003| taken was necessary to protect the child from physical or
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0004| sexual assault or substantial emotional harm; or
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0005| (b) reasonably believed the action taken
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0006| was necessary to protect himself from physical or sexual
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0007| assault;
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0008| [(3)] (4) "person" means any individual or
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0009| legal entity, whether incorporated or unincorporated, including
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0010| the United States, the state of New Mexico or any subdivision
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0011| thereof;
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0012| [(4)] (5) "physical custody" means actual
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0013| possession and control of a child; and
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0014| [(5)] (6) "right to custody" means the
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0015| right to physical custody or visitation of a child arising
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0016| from:
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0017| (a) a parent-child relationship between
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0018| the child and a natural or adoptive parent absent a custody
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0019| determination; or
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0020| (b) a custody determination.
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0021| B. Custodial interference consists of any person,
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0022| having a right to custody of a child, maliciously taking,
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0023| detaining, concealing [or], enticing away or failing to
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0024| return that child without good cause and with the intent to
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0025| deprive permanently or for a protracted time another person
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0001| also having a right to custody of that child of his right to
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0002| custody. Good cause shall constitute an affirmative defense to
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0003| custodial interference.
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0004| Whoever commits custodial interference is guilty of a
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0005| fourth degree felony.
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0006| C. Unlawful interference with custody consists of
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0007| any person, not having a right to custody, maliciously taking,
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0008| detaining, concealing or enticing away or failing to return any
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0009| child with the intent to detain or conceal permanently or for a
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0010| protracted time that child from any person having a right to
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0011| custody of that child.
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0012| Whoever commits unlawful interference with custody is
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0013| guilty of a fourth degree felony.
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0014| D. [Violation of Subsection B or C of this section
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is unlawful and is a fourth degree felony.
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E.] A peace officer investigating a report of a
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0017| violation of this section may take a child into protective
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0018| custody if it reasonably appears to the officer that any person
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0019| will flee with the child in violation of Subsection B or C of
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0020| this section. The child shall be placed with the person whose
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0021| right to custody of the child is being enforced, if available
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0022| and appropriate, [and] or, if not, in any of the community-
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0023| based shelter care facilities as provided for in Section [32-
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1-25.1] 32A-4-8 NMSA 1978.
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0025| [F.] E. Upon recovery of a child, a hearing by
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0001| the civil court currently having jurisdiction or the court to
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0002| which the custody proceeding is assigned shall be expeditiously
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0003| held to determine continued custody.
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0004| [G.] F. A felony charge brought under this
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0005| section may be dismissed if the person voluntarily returns the
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0006| child within fourteen days after taking, detaining or failing
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0007| to return the child in violation of this section.
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0008| [H.] G. The offenses enumerated in this section
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0009| are continuous in nature and continue for so long as the child
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0010| is concealed or detained.
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0011| [I.] H. Any defendant convicted of violating
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0012| the provisions of this section may be assessed the following
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0013| expenses and costs by the court, with payments to be assigned
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0014| to the respective person or agency:
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0015| (1) any expenses and costs reasonably incurred
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0016| by the person having a right to custody of the child in seeking
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0017| return of that child; and
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0018| (2) any expenses and costs reasonably incurred
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0019| for the care of the child while in the custody of the human
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0020| services department.
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0021| [J.] I. Violation of the provisions of this
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0022| section is punishable in New Mexico, whether the intent to
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0023| commit the offense is formed within or outside the state, if
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0024| the child was present in New Mexico at the time of the taking."
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